1. The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution and § 10 of the Kansas Constitution Bill of Rights protect against (1)
a second prosecution for the same offense after acquittal, (2) a second
prosecution for the same offense after conviction, and (3) multiple punishments
for the same offense.

2. A counseled voluntary guilty plea waives all formal defects which are
nonjurisdictional. This includes a claim of double jeopardy. Conscious waiver of
all potential defenses is not required.

3. When a defendant fails to contest a civil forfeiture action, the defendant is not a
party to the action and is not "punished" or placed in jeopardy in the forfeiture
action.

4. Kansas forfeiture laws in effect at the time of the offense in this case do not
constitute "punishment" within the meaning of the Double Jeopardy Clause of
the Fifth Amendment to the United States Constitution or § 10 of the Kansas
Constitution Bill of Rights. A forfeiture proceeding under K.S.A. 65-4171 is civil
in nature, and the statutory scheme is not so punitive as to negate legislative
intention to establish a civil remedial mechanism.

Before GERNON, P.J., ELLIOTT, J., and JOHN W. WHITE, District Judge, assigned.

WHITE, J.: In this K.S.A. 60-1507 proceeding, Tommy G. Thompson challenges
his conviction for selling cocaine by claiming double jeopardy. Thompson claims that a
forfeiture of his vehicle used in the commission of the offense and his conviction of the
offense constituted multiple punishments. The district court denied Thompson's
petition. We affirm the district court's decision.

Thompson pled guilty to two counts of sale of cocaine and was sentenced on
each count to 4 to 15 years' imprisonment, to be served concurrently. On February 8,
1993, sometime before the plea and conviction in the criminal offense, the City of
Lenexa decreed forfeiture of Thompson's vehicle pursuant to K.S.A. 65-4171. The
forfeiture was based on its use during the above criminal activity. Thompson did not
contest the forfeiture action.

Thompson filed a K.S.A. 60-1507 action, claiming that forfeiture of his vehicle
was punishment, and, therefore, the subsequent criminal conviction constituted double
jeopardy. The district court held a hearing on the motion on September 6, 1995. The
court found that Thompson pled guilty to two counts of sale of cocaine. The sales
occurred on October 27 and November 4, 1992. The civil forfeiture action dealt with
criminal activity that occurred on October 27 and November 20, 1992. Therefore, the
City of Lenexa did not base forfeiture on the offense committed on November 4. As to
forfeiture for the crime committed on October 27, the court ruled that because
Thompson did not contest the forfeiture claim, he had, in essence, abandoned the
property. The court further ruled that since Thompson voluntarily gave up the vehicle,
he cannot now claim multiple punishments for the same offense.

Thompson contends that the civil forfeiture of his vehicle amounted to a penalty.
Therefore, he argues, this subsequent conviction for sale of cocaine was
unconstitutional under the Fifth Amendment to the United States Constitution and § 10
of the Kansas Constitution Bill of Rights. He claims he could not have knowingly and
voluntarily waived double jeopardy guarantees when pleading guilty to the criminal
charges or when not contesting the forfeiture action. The State argues Thompson
cannot raise a valid double jeopardy claim where he did not contest the forfeiture action
and that he waived any double jeopardy claim by entering a guilty plea.

The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution and § 10 of the Kansas Constitution Bill of Rights protect against (1) a
second prosecution for the same offense after acquittal, (2) a second prosecution for
the same offense after conviction, and (3) multiple punishments for the same offense.

Thompson claims he was subject to "multiple punishments" for the same
offense. See State v. Cady, 254 Kan. 393, 396, 867 P.2d 270 (1994) (citing Brown v.
Ohio, 432 U.S. 161, 165, 53 L. Ed. 2d 187, 97 S. Ct. 2221 [1977]). For the following
reasons, we disagree: Thompson waived a double jeopardy claim by entering a guilty
plea to the criminal offenses; Thompson has no valid double jeopardy claim when he
did not contest the civil forfeiture action; and, finally, forfeiture of a vehicle used in
criminal activity is not "punishment" as the term is used in the Double Jeopardy Clause.

"A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements
necessary to sustain a binding, final judgment of guilt and a lawful sentence. Accordingly, when the
judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the
proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and
voluntary. If the answer is in the affirmative then the conviction and the plea, as a general rule, foreclose
the collateral attack." Broce, 488 U.S. at 569.

There are two exceptions to this rule, neither of which are applicable to the facts
of this case. See Broce, 488 U.S. at 575-76.

Thompson's only argument is that he could not knowingly and voluntarily waive
his right to claim double jeopardy when he was unaware of the possibilities of this
defense. That Thompson wants to jump on the bandwagon of double jeopardy claims
at this late date does not change the general rule here. There is no requirement of a
conscious waiver regarding each possible defense relinquished by a guilty plea.
Absent a claim of ineffectiveness of counsel, Thompson's argument that he did not
knowingly and voluntarily waive his double jeopardy rights fails. See Broce, 488 U.S.
573-74.

Second, the State argues that Thompson has no valid double jeopardy claim
where he did not contest the forfeiture action. The State cites U.S. v. Cretacci, 62 F.3d
307 (9th Cir. 1995), and U.S. v. Torres, 28 F.3d 1463, 1466 (7th Cir.), cert. denied ___
U.S. ___, 130 L. Ed. 2d 603 (1994). Both circuits ruled that when a defendant fails to
contest the civil forfeiture action, defendant was not a party to that suit, and, therefore,
there can be no double jeopardy for a subsequent criminal proceeding. More recently,
the Tenth Circuit has held that failure to contest the civil forfeiture is fatal to a double
jeopardy claim in subsequent criminal proceedings. U.S. v. Denogean, 79 F.3d 1010
(10th Cir. 1996); U.S. v. German, 76 F.3d 315 (10th Cir. 1996).

In German, the defendant was arrested for transporting marijuana in a truck he
was driving. A Drug Enforcement Administration agent confiscated the truck. Later, the
truck was forfeited and sold at auction. The district court denied defendant's motion to
dismiss the criminal indictment on double jeopardy grounds. The court cited with favor
the decision in Torres and U.S. v. Arreola-Ramos, 60 F.3d 188 (5th Cir. 1995), and
held: "German was never placed in jeopardy or 'punished' in any constitutional sense
because he was never a party to any proceeding designed to adjudicate his personal
culpability. His subsequent criminal prosecution is not barred by double jeopardy." 76
F.3d at 320.

In Denogean, the defendant pled guilty to the criminal charges. Although the
defendant did not expressly waive the Fifth Amendment guarantee against double
jeopardy, the Tenth Circuit court held that defendant waived the double jeopardy
argument by failing to raise it below. The court stated that an exception might be made
in the presence of plain error that effected substantial rights. The defendant did not
contest the civil forfeiture action. In view of the rule in German, there was no plain
error. Since there was no plain error, the court refused to consider defendant's double
jeopardy claim following a guilty plea. 79 F.3d at 1013.

Thompson failed to contest the civil forfeiture action instituted against his
vehicle. Since he was not a party to this action, he was not "punished" or placed in
jeopardy in the forfeiture action.

Last, Thompson argues that the only real issue before this court is whether the
forfeiture was punitive in nature that would constitute punishment for the offense. The
United States Supreme Court recently eliminated any doubts in this area by ruling that
civil forfeitures do not constitute "punishment" for purposes of the Double Jeopardy
Clause. United States v. Ursery, 518 U.S. ___, 135 L. Ed. 2d 549, 571, 116 S. Ct. 2135
(1996).

In Ursery, the United States Supreme Court consolidated two United States
Court of Appeals cases from the Ninth and Sixth Circuits. Both circuits held that the
Double Jeopardy Clause prohibited the government from both punishing the defendant
for a criminal offense and forfeiting defendant's property for the same offense in a
separate civil action.

The Supreme Court, in Ursery, recognized a long line of cases where civil
forfeiture actions and criminal prosecutions were based on the same offense. The first
case to rule that the Double Jeopardy Clause did not apply was Various Items v. United
States, 282 U.S. 577, 75 L. Ed. 558, 51 S. Ct. 282 (1931). The Court reasoned:

"[This] forfeiture proceeding . . . is in rem. It is the property which is proceeded against, and, by
resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and
insentient. In a criminal prosecution it is the wrongdoer in person who is proceeded against, convicted,
and punished. The forfeiture is no part of the punishment for the criminal offense. [Citation omitted.] The
provision of the Fifth Amendment to the Constitution in respect of double jeopardy does not apply.
[Citations omitted.]" (Emphasis added.) 282 U.S. at 581.

Later cases reaffirmed the Court's holding in Various Items.One Lot Emerald Cut
Stones v. United States, 409 U.S. 232, 34 L. Ed. 2d 438, 93 S. Ct. 489 (1972); United
States v. Assortment of 89 Firearms, 465 U.S. 354, 79 L. Ed. 2d 361, 104 S. Ct. 1099
(1984). In 89 Firearms, the court applied a two-part analysis: (1) Was it the intent of
Congress to design forfeiture as a remedial civil sanction, and (2) if so, was the
statutory scheme so punitive in purpose or effect as to negate Congressional intent to
establish a "civil remedial mechanism"? 465 U.S. at 362, 365.

Applying this two-part test to the present case, we hold: (1) The forfeiture
proceeding resulting in the sale of Thompson's vehicle was civil in nature, and (2) the
statutory scheme is not so punitive as to negate legislative intention to establish a civil
remedial mechanism. The statute provides that the forfeiture shall "proceed against the
property" by filing in the jurisdiction where the property is located. K.S.A. 65-4171(a).
The petition shall contain a statement that the property was used or intended to be
used in violation of this act or that the property is contraband. K.S.A. 65-4171(a). (The
forfeiture statute, K.S.A. 65-4171, has since been repealed and replaced by K.S.A.
60-4101 et seq.)

The statutory forfeiture provides for a civil proceeding in rem. A legislative intent
to assure that property is not used for illegal means, to make illegal activity unprofitable,
or to remove contraband may be implied from the statutory language. Kansas forfeiture
laws in effect at the time of Thompson's offense do not constitute "punishment" within
the meaning of the Double Jeopardy Clause or § 10 of the Kansas Constitution Bill of
Rights.